“The Beautiful Mid-Wife, the Baby, and the Beautiful Mother” (1923) Dean Cornwell. Public Domain.

The Time to Fight Surrogacy Is Now

I was recently helping my youngest son get into his pyjamas when he asked me about the shape of his belly button. We had a brief discussion about how the umbilical cord works, transferring oxygen and nutrition from mother to baby in the womb. (I used to be a biology teacher—old habits die hard.) It was a special reminder of the unique bond that exists between him and me, as it does between all mothers and their children.

Soon after this conversation, I was interviewed on the radio about the decline in UK birth rates, an issue that I have tried to draw attention to since being elected as a Member of Parliament. The interviewer asked whether I thought improved access to surrogacy and other “fertility treatments” could help to reverse falling birthrates. I must admit that this question took me by surprise. I had not much thought about the issue of surrogacy before, other than a vague awareness of the kind of altruistic family arrangements played out in films and soap operas. But considering the process of surrogacy in light of the discussion with my son, it struck me as unspeakably sad that children born to—and taken away from—surrogate mothers will never know the woman who was on the other end of their umbilical cord.

When surrogacy is mentioned in the UK media, it is almost always as an unequivocally positive phenomenon, giving infertile women and gay couples the opportunity to have the children they so earnestly desire. There are a number of newspaper stories about women who have had a positive experience of being a surrogate. But it is hard to find any public discussion about the impacts of surrogacy on the babies conceived and born in this way.

Too often, we consider surrogacy (as we do many issues) through the lens of competing adult rights. There are the rights of the individuals who want to be parents but can’t conceive in the natural way. There are the rights of the surrogate mother, who, however sincerely consenting, undergoes a difficult and physically risky process. The “commissioning” parents face the risk of the surrogate mother having second thoughts during pregnancy or after the birth, and the surrogate mother faces the risk of the “commissioning parents” changing their minds and refusing the baby.

But from the baby’s point of view, it seems less a clash of rights and more like a zero-sum game. There is no bond in the world like that between a baby and his mother, the woman who carried and gave birth to him, who enveloped and nurtured his body inside her own. There is no security for a baby like being held in his mother’s arms and hearing his mother’s voice. To bring a child into the world with the deliberate intention of breaking that bond at birth raises serious ethical questions. Research suggests newborn babies separated from their mothers may suffer irreparable psychological wounds. And many of these babies will never know anything about their genetic families, something that is surely a core part of human identity.

The desire to become a parent is one of the strongest human instincts there is. I have enormous sympathy for those who desire children but, for whatever reason, are unable to become parents. But there is no fundamental right to reproduce, just as there is no right to get married or to live into old age; we may not find a suitable partner, or may die young. It’s time for lawmakers to leave aside the autonomy rights-based framework that prioritises the desires of adults over the needs of children and uphold our duty to protect the most vulnerable members of our society.

Surrogacy in the UK

Although many—perhaps most—people greatly desire to become parents, societies agree that there are certain morally and legally unacceptable ways to obtain a child. In many countries, surrogacy is legally forbidden. In France, for example, the law upholds “the principle of inviolability of the human body which means that no part of it can be treated like a property.” Other countries cite risks of exploitation and harm. Yet here in the UK, surrogacy is allowed. This makes Britain an outlier amongst Western liberal democracies such as Germany, Italy, Spain and Portugal, where surrogacy—whether commercial or altruistic—is banned.

Britain is famously a nation of animal lovers. As an MP, I can attest to this: I receive more emails about animal welfare than almost any other topic. In this country, it is rightly illegal to sell a puppy before it is weaned from its mother, around eight weeks after birth. Yet it remains legal to conceive a human child through surrogacy with the deliberate intention of removing the child from his or her mother immediately after birth.

Although the number of babies born through surrogacy in Britain is small, it has quadrupled in the last ten years. Surrogacy will never be any kind of serious solution to the national and international problem of low birthrates. Yet it is seen by many both as an acceptable solution for infertility and as a means for gay men to become parents. In public debate, surrogacy is increasingly given equivalence with less controversial fertility treatments, such as IVF.

In the UK, the law is weighted on the side of the surrogate. The Surrogacy Arrangements Act 1985 states that the surrogate will be the child’s legal parent at birth; that legal parenthood can be transferred by parental order or adoption after the child is born, but all parties must agree; and you cannot pay a surrogate in the UK, except for their “reasonable expenses.” In other words, surrogacy in the UK is fairly tightly regulated.

But there is nothing to stop UK nationals from going abroad to buy a baby through surrogacy from countries where surrogate mothers have fewer rights and exploitation is rife. When the Covid-19 pandemic began in 2020, social media was awash with images of dozens of abandoned infants in Ukraine, where the “commissioning parents” were unable to collect their babies due to international travel restrictions. These newborns, having been separated from their mothers (who had no legal option to change their minds), were cared for by strangers until they could be “claimed.”

The Sorry State of Debate

So far, surrogacy has not attracted much political debate in the UK, especially when compared with other reproductive issues. In the last five years, there have been just 28 mentions of “surrogacy” in the House of Commons, compared with 105 references to IVF, 667 mentions of adoption, and 166 of fertility during the same time period.

In contrast to other “life issues,” such as abortion (1500 mentions) and assisted dying (301), which continue to provoke debates with strongly held views expressed on both sides, whenever surrogacy has been raised in Parliament it seems to have been mentioned—unchallenged—as an unalloyed good.

For example, in January 2020, Dame Caroline Dinange, then the Minister for Care, told a Westminster Hall debate on surrogacy that members of the Government “of course recognise the value of surrogacy in today’s society, where family structures, attitudes and lifestyles are increasingly diverse. It is all about building happy and loving families…” 

During this debate, MPs discussed parental orders, the need to “modernise” surrogacy legislation and the changing nature of society. Yet, astonishingly, in the whole debate, not one single MP uttered the word “baby.”  

It is difficult to imagine a debate on the steel industry that included no mention of steel, or a discussion of sheep farming that did not refer to lambs. Given the enormous concern shown by parliamentarians on issues such as live animal exports, puppy farming, or ongoing scandals in the children’s social care sector (what Americans call “foster care”), it is perplexing to say the least that MPs debating surrogacy did not express concern for—or even curiosity regarding—the welfare of babies.

The Future of Surrogacy Legislation

This lack of rigorous parliamentary debate makes me deeply concerned about the future of surrogacy legislation in this country. For now, surrogacy arrangements are tightly regulated. But last year, the influential Law Commission—following years of lobbying from pro-surrogacy campaign group Surrogacy UK—published proposals to bring sweeping reform to British surrogacy laws.

It is normal practice for the Law Commission to make recommendations to the Government on how particular legislation should be changed or updated. But, in a significant departure from the status quo, the Commission went as far as to publish a fully drafted new surrogacy Bill, setting out how their recommendations could be put into the statute.

This new Bill, if enacted, would liberalise UK surrogacy rules, tipping the balance of power away from the surrogate mother and towards the commissioning parents. The Bill proposes to make the commissioning couple legal parents of the child at birth, meaning the birth mother would never be recognised in law or listed on the birth certificate. The Bill allows for advertising to attract and recruit surrogate mothers, likely leading to an explosion in numbers of poor women agreeing to undertake the practice out of financial necessity.

The Law Commission’s plans take the family courts out of the arrangements, putting surrogacy completely at odds with UK adoption legislation and practice, which undertakes rigorous checks on those who wish to be adoptive parents.

From the point of view of vulnerable babies and surrogate mothers, these proposed reforms are alarming. Many women who become surrogates have never been pregnant before and so cannot fully anticipate the biological, emotional, and psychological impacts of carrying a baby and giving birth. Many surrogates also use their own eggs, meaning that the surrogate is her child’s genetic as well as gestational mother. To erode a woman’s legal right to be named as her own child’s parent is both regressive and exploitative.

Fortunately, the current Conservative government has declined to pursue the Law Commission’s recommendations, citing “insufficient parliamentary time.” But with a General Election this year and political parties seeking ideas for policy commitments, it is eminently feasible that proposals from the highly respected Law Commission and backed by influential lobby groups will make their way into election manifestos.

If, subsequently, there was a vote in the next Parliament on the Law Commission’s proposed Bill, it would unquestionably pass with a decent majority. I say this regretfully but with certainty, because when it comes to complex ethical questions, Parliament has in recent years shown itself poorly equipped to interrogate the issues at hand. For example, in March 2022, MPs voted to expand the provision of abortion pills by post without safeguards, greatly increasing the risks of serious maternal complications, coercive abortions, and terminations occurring long after the safe and legal gestational limit for this type of medical abortion. Despite the serious safety concerns, the reform passed with 215 votes to 188, with over 200 MPs declining to vote at all.

There is no doubt that, at present, a vote to liberalise surrogacy laws would go the same way. There is a tendency amongst MPs on the left to view all change as progress, and for those on the right to duck the issues for fear of being labelled old-fashioned or bigoted. And ethical or “life” issues are by convention “free votes,” meaning that MPs can choose to abstain altogether when it comes to making tough ethical decisions.

And that is why, even though there is no immediate legislative threat, it is important to raise the salience of arguments against relaxing surrogacy laws. While MPs may at present be reluctant to engage, if the public has the opportunity to hear both sides of the argument, then there is perhaps a glimmer of hope that politicians might approach any future discussion with more curiosity.

The Inadequacy of Rights-Based Politics

When it comes to considering the ethics of surrogacy, Parliament—and, indeed, the whole political and media class—has a blind spot. Surrogacy is viewed only through the lens of its potential to fulfil the desires of individual adults. A cynic might say that this is a market-based argument, where consumer choice, satisfaction, and availability of the product are the only factors of interest. But I don’t believe politicians and commentators are being cynical or callous. Instead, this blind spot reveals the inadequacy of our current philosophical and moral framework to address the ethical questions raised not only by surrogacy but also by many other issues.

Since the Second World War, British politics has operated increasingly on a foundation of individual rights. A well-ordered society certainly requires legally enforceable rights, such as property rights or the right to a fair trial. And in the aftermath of the 1930s, the concept of basic “human rights”—such as the right to freedom of speech and religion—understandably gained prominence across Europe and the West. But in recent years, this individual rights framework has begun to resemble a Christmas tree onto which more and more baubles are added each year. This culminated in the passage of the Equality Act in 2010, which set out in law nine “protected characteristics,” including sex, gender reassignment, race, religion, and disability. The effect of this has been to divide adults into identity groups competing for individual rights.

Since one person’s right is another person’s duty, we must use the law to enforce rights and adjudicate between competing rights. Rights to unemployment benefits or a state pension require laws to force others to pay for those benefits through taxation. If there were a legal right to parenthood, then the law would seem to have to ensure that anyone can have a child.

Rights-based politics are the result of liberal individualist thinking, reducing morality to what Jonathan Haidt calls the “care harm” principle, where concern for the individual takes precedence over almost everything else, including the common good. We have come to view denying an individual something that they want—in this case, to be a parent—as a “harm,” and our political reflex is now to legislate to prevent that harm.

And when individual rights and harms compete, it is now always the weak, vulnerable, and voiceless who seem to lose their “rights.” We have seen this play out in technicolour with the debate around gender self-identification. The “right” of a man to identify as a woman has trumped the common good argument that women and girls need protection from men. And although Britain has so far resisted legalising assisted suicide, the media is dominated by stories of (genuine and horrific but rare) cases of extreme end-of-life suffering. But there are few column inches given to the societal level outcomes of allowing vulnerable people to choose to die. With surrogacy, the debate revolves around the very worthy desire of infertile or gay couples to become parents. It simply does not consider the wider implications of allowing babies—and mothers—to be bought and sold. Exceptional individual cases of genuine suffering now trump the centuries-old boundaries that once protected the truly vulnerable and powerless.

How can arguments about individual rights determine whether a baby’s “right” to her mother should be more or less important than a gay or infertile couple’s “right” to become parents? The autonomy rights-based framework cannot square this circle. Since babies cannot submit their “stakeholder views” to a public consultation, it’s not hard to predict whose “rights” will win out.

This rights-based thinking does not serve children well. But there is an alternative worldview, in fact the worldview upon which Western civilisation was founded. That is the belief in the sacredness of life, based on the Judeo-Christian concept of “Imago Dei,” the understanding that every individual is made in the image of God and thus possesses unique value and dignity. Such a philosophy not only holds each individual life to be inherently valuable, but also attaches a sacred quality to natural human relationships, the mother-child bond perhaps being the most inviolable. Such a worldview does not in any way dismiss the suffering of adults, but it does prioritise the protection of those who have little or no agency or ability to defend their own interests—namely, babies and children—over those who do. A better account of rights, grounded in the Imago Dei, was once assumed.  

Yet under the prevailing rights-based framework, the best interests of babies and children—which are often rather inconvenient for adult rights and autonomy—are frequently overlooked. From Covid policies that sacrificed the welfare of children for adults and childcare policies that serve the economy over the needs of babies, to campaigners’ plans to liberalise surrogacy under our current political settlement, adult demands repeatedly take priority over children’s needs.

To Fight Surrogacy, We Must Emphasise Material Reality

Our rights-based liberal order has run out of road. From immigration to AI to surrogacy, it is incapable of solving the ethical issues we face today, and it cannot properly protect children. But though there may be growing dissatisfaction with the liberal establishment—particularly amongst the young—we are a long way from any sort of post-liberal mainstream.  

So, in the current political climate, how can we argue effectively against surrogacy and for the protection of children and women? I believe there is much to learn from the growing success of the gender-critical movement, which is winning the public debate by reconnecting thinking with reality. Gender-critical campaigners have shifted the dial by drawing attention to the gulf between the thought experiment of gender ideology and the reality of biological sex. Images of six-foot-tall male athletes out-competing slender young girls in “women’s” sports competitions emphasise the inescapable reality of the natural and material. In the face of such stark evidence, arguments about gender being “just a feeling” rapidly lose credibility.  

So it is with surrogacy. We must emphasise the material reality of fertility, pregnancy, and motherhood, the known facts about the harms of separating babies from their mothers, and the obvious natural requirement for a biological mother and father. Scientific knowledge about pregnancy, birth, and the in-utero relationship between mother and baby is growing. Even in an era of such moral confusion, for most people, contemplating the raw physical reality of pregnancy, childbirth, and infant care still elicits an intuitive sense of the injustice and cruelty of removing a helpless newborn from her mother. We must call on this moral sense as we challenge the idea that desiring to be a parent is a sufficient justification for bringing a baby into the world with the express purpose of severing the mother-child bond.

It seems likely that loosening surrogacy laws will be the next liberalising political battle fought by an alliance of “progressive” feminists defending the rights of women to reproductive autonomy and gay rights activists arguing for the equal right of all adults to become parents.

But who will represent the babies? 

We can only hope that politicians begin to see through the limitations of our current rights-based framework and rediscover a sacred duty to defend the interests of children.